Yet Another Misrepresentation in the Mann Pleadings

In today’s post, I’ll discuss another misrepresentation in Mann’s Statement of Claim, one in which Mann bizarrely misrepresented the nature of his own research, falsely claiming credit for being “one of the first” to “document” the increase in 20th century temperatures. This particular false claim was in the same paragraph as Mann’s false claim to have received a Nobel prize. While the latter false claim has received widespread and well-deserved derision, Mann’s false description of the nature of his research has thus far passed without comment, an oversight that I will try to remedy in today’s post, which is part of a series of articles on various untrue statements by Mann in his pleadings in Mann v Steyn et al. For previous articles, see here.

Temperature Data vs Proxy Reconstructions The distinction between instrumental temperature data and proxy reconstructions for the pre-instrumental period is one that Mann obviously understands. The distinction was clearly shown in the prominent IPCC AR3 two-panel diagram (SPM) in which the top panel showed the CRU temperature data over the instrumental period and the bottom panel showed the Mann proxy reconstruction.

While Mann has been very prominent in proxy reconstructions, he has had zero role in the development of global and hemispheric temperature data. The collation of instrumental temperature data from meteorological stations around the world has been sponsored by the World Meteorological Organization for many decades, with the Smithsonian’s World Weather Records being an important early compendium. Early attempts to develop hemispheric and global statistics had begun by at least mid-20th century, including efforts by Guy Callendar, Wesley Mitchell and others. In the 1980s, three different agencies of the US government sponsored more systematic institutionalized efforts that continue to this day: NASA’s Goddard Institute (James Hansen) commenced the GISS index; the US Department of Energy sponsored a similar program at the University of East Anglia (Phil Jones and CRU); and NOAA had its own index, as well as compiling the GHCN and USHCN data sets. The UK Met Office led the way in the compilation of marine data.

Mann used temperature data (typically CRU) for comparison and benchmarking, but Mann himself had no role in the development of the temperature data used for these comparisons.

Mann’s Statement of Claim
Nonetheless, paragraph 2 of Mann’s Statement of Claim – which introduces the scope of Mann’s research, bizarrely says that Mann was “one of the first” to document temperature increases in the 20th century. In the original Statement of Claim (the italicized sentence was deleted in the Amendment in July 2013), Mann even claimed that the Nobel prize supposedly awarded to “Dr Mann and his colleagues” was “as a result of this research” [showing 20th century temperature increases]:

2. Dr. Mann is a climate scientist whose research has focused on global warming. Along with other researchers, he was one of the first to document the steady rise in surface temperatures during the 20th Century and the steep increase in measured temperatures since the 1950s. As a result of this research, Dr. Mann and his colleagues were awarded the Nobel Peace Prize.

The phrase “as a result of this research” was applied by J Combs-Greene in her decision as follows:

In 2002, Plaintiff “was named as one of the fifty leading visionaries in science and technology by Scientific American, and has received numerous awards for his research.” Id [3 – In his Complaint, Plaintiff alleges that he and his colleagues, as a result of their research, were awarded the Nobel Peace Prize as a result of their research. Defendants claim that the Nobel Peace Prize award, referenced in the Complaint, states that the award was given jointly to Vice President Al Gore and the IPCC. Id. at 7.]

But, needless to say, Mann had nothing to do with the development of the instrumental temperature data showing 20th century temperature increases. Nor were the IPCC and Al Gore awarded the Nobel Peace Prize for research into 20th century instrumental temperature data, but, according to the citation,

for their efforts to build up and disseminate greater knowledge about man-made climate change, and to lay the foundations for the measures that are needed to counteract such change”

Mann’s (false) claim to have been “one of the first” to document 20th century temperature increase was apparently based on MBH98 and MBH99, which he described later in the pleadings (paragraph 15) as “two research papers showing a steady rise in surface temperature during the 20th Century and a steep increase in measured temperatures since the 1950s”. Needless to say, these papers showed 20th century temperature data in key graphics, but the papers themselves were obviously about the proxy reconstructions, not the instrumental record.

Remarkably, nowhere in the Statement of Claim does Mann directly ever acknowledge that his primary research was proxy reconstructions or that these proxy reconstructions depended on tree rings. Neither of the words “proxy” or “reconstruction” occur anywhere in Mann’s Statement of Claim. Nor does Mann anywhere describe or admit to the use of tree ring data in his proxy reconstructions. Indeed, the term “tree ring” occur only when Mann objected to Steyn calling him “the very ringmaster of the tree-ring circus”.

Conclusion
Mann’s misrepresentation of the nature of his research is very curious since it seems that it ought to have been easy enough for Mann and/or Peter Fontaine to write a simple statement that Mann’s research involved proxy reconstructions of past temperature, mostly using tree rings. And why say that Mann was “one of the first” to document the increase in 20th century temperatures when he wasn’t? Readers puzzled by such mis-statements are asked not to refer to comments by Mary McCarthy about “and” and “the”.

In a follow-up post, I’ll discuss the curious attention paid in Mann’s pleadings to EPA’s findings on temperature data – findings that would be relevant to Mann if his research had been about temperature data (as he had claimed).

Well my above comment was probably rightly snipped for being off-track, but if you want to get an insight into Mann’s particular style and thinking, his ‘Hockeystick and the Climate Wars’ is a revealing read, if you can wade through it.

I think the historian’s way of describing it would be ‘highly unreliable memoirs’. In my view it’s full of misrepresentations (much like in the above article), and shows a startling inability for objective analysis. How he manages to get away with all this, and so often amongst the science community, is another matter.

“Along with other researchers, he was one of the first to document the steady rise in surface temperatures during the 20th Century and the steep increase in measured temperatures since the 1950s.”

These are court pleadings, written and signed by the lawyers. They are not written by Mann. This sounds to me like the output of some lawyer who has seen the HS graph and is trying to describe it to the court.

I think the most likely explanation is that Mann is used to getting away with stretching the truth and thought he would get away with it again. Indeed, he won the motion at the trial court level on the basis of claims that are obviously false as ordinary facts. But Mann was claiming he was a Nobel prize winner on his personal web page long before it was asserted in court and long after it was debunked.

Correction: Most attorneys would not file something without giving their client a chance to review it. Whether the client does so is up to them, and judging by the degree of care Mann exercises in his work, I’m not surprised by his failure.

One amusing example of the kinds of errors that slip through: According to someone teaching a CLE I took a few years ago, a U.S. Patent actually issued with a claim that read, approximately, “The device of claim X, wherein this claim is a totally bogus claim inserted to see whether the inventor has actually read the application I sent him and reviewed it carefully.”

Unless he, too, specializes in one technical area, the lawyer must to a great extent rely on the facts the client gives him. Having dealt with scientists in a wide range of disciplines, I can report that their reliability is, well, sketchy. I routinely had to have them correct things in their write-ups that were obviously wrong—and then had to send back the corrections, which were still wrong. But who knows what errors there were that I couldn’t detect?

That said, I can’t imagine being as credulous in dealing with someone like Mann as his lawyers apparently were.

Again Nick, it does not matter. They are under his employ. So he has to sign off on them all. After the trial, he can sue his lawyers for fraud and malfeasance, but as far as a court of law is concerned, they are the same as if he stood before the judge and swore to them.

Mann surely reviewed the court documents before filing. His error was probably making the assumption that the courts’ and his opponents’ review would be as rigorous, competent and honest as the peer-review of his scholarship (i.e. not very).

Nick, your attempted whitewash of Mann’s involvement here is a patent absurdity. There is no way on earth the lawyers are going to file a statement, particularly one that is supposed to be a statement of fact (rather than a legal argument), and particularly one that relates to the client’s background and research without having it carefully reviewed and signed off on by the client. You are grasping at straws in the wildest way.

A simpler explanation? Easy. Mann plays loose and fast with the facts, always spinning things to match his inflated ego and warped view of reality. A little aggrandizement here, a failure to mention a particular fact there, a lack of perception about the actual — very limited and questionable — nature of one’s own research, and viola, it is very easy to see how Mann could write and/or sign off on such a thing.

What is harder to understand is why you would defend obvious factual misrepresentations as resulting from Mann’s lack of involvement in the document.

That you think this is all the work of the lawyer shows you don’t have any idea how the process works nor what you are talking about. Why not just acknowledge the possibility that Mann misrepresented his work to the court?

Steve: I agree with Nick on this issue. I would bet dollars to doughnuts that the paragraph was written by Mann’s lawyers. I’m also sure that they sent it to Mann for vetting and that Mann didn’t appreciate the importance of careful vetting and was very sloppy. Plus the form of error is not one that I believe that Mann would make. I’m as familiar with his work as anyone and the need to always watch the pea, but it still doesn’t seem to me like the sort of error that Mann himself would make. There is much in Mann’s conduct to criticize, but I think that you’re hyperventilating and urge a bit more calm.

The misleading statements may well be, at least partly, an imperfect paraphrase of Mann’s usual self aggrandizing bluster but deliberate or not there is an effect which Mann may have thought convenient to leave in place. i.e. his work is being portrayed as being closer to basic scientific measurement of temperature involving thousands of predominantly honorable scientists and lay people around the world.
Now, most people here would have an idea of how that data has been subsequently tortured and how poorly sited many weather stations are etc, etc. but to the uninitiated this sounds like factual, solid, impartial science.
On the other hand Mann’s proxy gymnastics mostly involve himself, his computer, a tiny amount of cherry-picked data, his biases, his ego, his competence or otherwise with statistics etc, etc.
No wonder Mann wants to be seen as being in the data collection business rather than doing virtually solo number juggling.
Whether the implication was originally deliberate or not, Mann may not have wanted to change it once it was there.

Steve: Mann’s claim that he was “one of the first” to document the increase in 20th century temperatures was brazenly false. Your citation doesn’t support Mann’s false claim. Merely performing a SVD on a temperature record developed by someone else doesn’t entitle him to claim that he was “one of the first” to document the increase. Nor have I or anyone else said that Mann’s work did not “deal with” the instrumental record, though the merits of the dealing are questionable. Mann et al 1998 performed a SVD on temperature data as well, but that doesn’t make Mann’s misrepresentation correct.

when I have had anything to do with lawyers, Nick they go through it thoroughly with you and you have carte blanch to make any needed changes and are told that you must swear to the truth of what you are saying. It is his charge, the lawyers are only there to relate what Mann has wanted to say. Any scientific misrepresentation is Mann’s, pure and simple.

Nick. Best stop digging eh? That hole’s getting bigger and bigger.
Steve: I criticize Nick a lot, but how is Nick “digging” here? I think that his attribution of the error to the lawyers is plausible, though I don’t see how that helps Mann in respect to his case.

Nick, I agree with your observation (and question) that “The statement clearly doesn’t make scientific sense – so how is it there?”.

However, as other readers have observed, Mann is personally responsible for the veracity of the statements in his pleadings. He ought to have read the Statement of Claim carefully. Had he done so, one presumes that he would have noticed this incorrect statement and asked for it to be corrected. But he didn’t.

I also agree with your speculation that the language in question is more likely to have been written by a lawyer (presumably Fontaine), rather than Mann himself, since, no matter what one thinks of Mann, it’s hard to see how Mann could have so grossly misdescribed the scope of his work.

In a follow-up post, I’ll show that this characterization of Mann’s research which, as you observe, “doesn’t make scientific sense”, ties into their narrative about the EPA, either by coincidence or by intent.

The statement clearly doesn’t make scientific sense – so how is it there? Any better ideas?

These are court pleadings, written and signed by the lawyers. They are not written by Mann. This sounds to me like the output of some lawyer who has seen the HS graph and is trying to describe it to the court.

Notwithstanding the mis-statements in the Statement of Claim, Mann’s memorandum of January 2013, responding to motions by CEI and National Review, reports his papers were proxy reconstructions and even notes the use of tree rings. For example (page 18):

In 1998, Dr. Mann co-authored a peer-reviewed paper in Nature on the “paleoclimate”
(i.e. the study of ancient climate). The study applied new statistical techniques in an attempt to reconstruct temperatures over past centuries from “proxy” indicators—natural archives that
record past climatic conditions—which had been gathered and analyzed by other researchers in
12 prior peer-reviewed studies.19 These proxy indicators include the growth rings of ancient trees and corals, sediment cores from ocean and lake bottoms, ice cores from glaciers, and cave
sedimentation cores.

“However, as other readers have observed, Mann is personally responsible for the veracity of the statements in his pleadings.”

Actually I think not, at least not to the court. It’s obviously in his own interests to ensure that they are properly advised and getting it right, and it’s a puzzle that that isn’t happening. And you could say it is a civic duty.

But lawyers represent all kinds of clients. They may be corporations, groups of defendants, feeble-minded, fantasists, don’t speak English etc. It’s the lawyers’ responsibility to assemble, from whatever sources they can find, a set of facts which they believe to be supported by evidence, and which supports the clients’ case. If that isn’t possible, they withdraw. If it is, they submit it to the court.

There’s a common view here that this case rests on evidence from Mann as plaintiff. That isn’t clear to me. It’s mainly about what the defendants said, whether it is defamatory and whether said with actual malice. Part of that is whether it is false, and Mann could be expected to testify about that. But even that rests largely on publications, inquiries etc, and I would expect that he’ll have others testifying to their worth.

Steve: Nick, in my opinion, the battleground issue in this case, as with nearly all public figures, is “actual malice”, which, in this case, depends on whether the defendants are obliged to accept findings of government inquiries as facts and whether Mann’s claims of “exoneration” are valid. As I understand it, the inquiries, other than the disputed Penn State inquiry, did not provide the “exonerations” claimed by Mann nor are the defendants obligated to accept the findings of government inquiries as “facts”. These issues have to be resolved before one even gets to consideration of the statements themselves, some of which e.g. data torture, seem to be either opinion or within the scope of permissible commentary.

“the battleground issue in this case”
I think there’s a logical sequence. First they have to establish who said what and where. Then whether it is defamatory. Without that, there can be no issue as to malice.

But when it comes to “Mann’s claims of exoneration”, that may indeed be his claim, but it doesn’t rest on his personal evidence. The lawyers have submitted the inquiry findings, and if admitted, others will have to decide on their effect. Mann might testify as someone who was there, but the findings are submitted by the lawyers.

Nick, have you read any of the cases on “actual malice” in respect to public figures and how this is interpreted in SLAPP? If not, this is probably not worth discussing with you at this point.

Mann’s entire argument on actual malice depends on his claim that Steyn et al were obliged to accept the findings of the various government inquiries as to Mann’s exoneration. The ACLU’s position is that the defendants are not obliged to accept the findings of government inquiries. If not, Mann’s case collapses without anyone having to determine whether Mann had correctly characterized the inquiries as having cleared him – assertions that Steyn describes as “fraudulent”, providing compelling evidence from Mann’s book that he knew that his claim in respect to Oxburgh at least was untrue.

In the present pleadings, Mann does not have any fallback position if the ACLU argument (which is compelling) is accepted. Do you have a Stokesian argument against the ACLU?

“They have submitted the findings, and opinions about the findings. The court will decide (if required).”

OK. It would seem reasonable that they also have to consider the claims as well as the findings.

“The lawyers have submitted the inquiry findings, and if admitted, others will have to decide on their effect. Mann might testify as someone who was there, but the findings are submitted by the lawyers.”

So not only should there be a decision on the effect of the findings, but also about the truth of falsity of Mann’s claims about the findings.

Steve,“In the present pleadings, Mann does not have any fallback position if the ACLU argument (which is compelling) is accepted. Do you have a Stokesian argument against the ACLU?”

Taking the ACLU argument as“Under the First Amendment, the government is not the final arbiter of truth with the power to foreclose further challenge to its policies.”
I think it is too black and white. This is not a challenge to government policy; it is about A libelling B. An inquiry finding is not an essential part of a libel claim. And you can dispute such a finding without resorting to libel (as you do).

I don’t know how the actual malice will pan out. But the issue is recklessness. The court first has to be convinced that Steyn’s claim is false. Then it’s whether he had reckless disregard for the truth. The argument is that the inquiries required him to be more careful; not that he was required to believe them. It may have the effect of shifting the burden to him to show reason for disregarding them. That doesn’t “foreclose” challenge.
Steve: you didnt answer my question about whether you had familiarized yourself with the relevant cases. Your above response indicates that you haven’t. It also show that you don’t understand the role of SLAPP. Under SLAPP, claims against public figures are routinely dismissed for failure to show evidence of “actual malice” (as understood in US libel law) without the court making any determination on whether the original claim is true or false. You don’t appear to have tried to understand the applicable law and it’s therefore not that interesting trying to discuss the matter with you until you do.

To find Mann’s claim is true they’d have to look at PSU’s exoneration details – such as if Mann answered fully and truthfully to the question about his sending the delete request to Gene Wahl. We already have that answer. He did not.

Therefor Steyn not only did not have to believe he was exonerated, but had reason to believe that Mann acted contrary to good standards and possibly aided in what was an illegal act in UK.

See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964) (requiring public officials bringing libel claim to prove defamatory statement was made ‘with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not); see also Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 659 (1989) (noting New York Times standard also applies to statements about public figures (citing Curtis Publ’g Co. v. Butts, 388 U.S. 130, 162 (1967) (Warren, C.J., concurring in the result))).

Steve: the problem with this quotation is that the term “reckless disregard” has (as I understand it) a technical meaning in US libel law that is not equivalent to the tort law meaning that most people will assume e.g. Nick Stokes and without an exposition of the libel meaning of “reckless disregard” people are not much further ahead. If one reads the case law, you’ll see that the libel meaning of “reckless disregard” in respect of public figures is narrower and someone different than one would expect.

It’s fairly simple as thisisnotgoodtodo@Aug 20, 2014 at 5:27AM. If Mann had included the tree rings, then he would be forced to provide the data on them as proof as well as the formula(s)/method(s) used, et al. Part of the rules of civil procedure and such. Essentially, it is the concept that if one brings a matter into the lawsuit then one cannot complain about providing proof to support the statement. You can speculate whether Mann or his attorneys.

Mostly, imho, the hockey stick is essential to the defense and the strategy of delay. By not bringing it up in pleadings, he’ll argue (and appeal, et al) that it’s not relevant, etc.

“Mostly, imho, the hockey stick is essential to the defense and the strategy of delay. By not bringing it up in pleadings”

It’s there – even a graphic. It is discussed thus“Dr. Mann is well known for his work regarding global warming and the socalled“Hockey Stick Graph.” In 1998 and 1999, together with Raymond S. Bradley and Malcolm K. Hughes, Dr. Mann published two research papers showing a steady rise in surface temperature during the 20lh Century and a steep increase in measured temperatures since the 1950s (the “1998 Paper” and the “1999 Paper”).”

This description is almost identical to the potted summary noted above. That’s why I think that summary is just a lawyer’s description of the HS graph. Of course, it shouldn’t be so, but it is.

Keitho-
Surely Dr Mann would have had to sign the papers put forward by his lawyers. I was brought up to never sign something I hadn’t read and understood.

Court filings are signed by the attorney, not the client, with the exception of pro se filings. There are a few exceptions. Almost all attorneys provide the client with copies of the filings prior to filing in order to correct factual and other errors. The question being raised with regard to the misrepresentation in the court filings is whether Mann read the filings and if so, whether he corrected any actual errors or added to and/or embellished the factual errors in the editing process.

Thanks for that Joe. In my part of the world the client has to sign anything submitted by his defense team so that there can be no confusion. I rather naively thought that would be the case in the USA.

I must say I would feel very uncomfortable leaving others to make statements on my behalf that I hadn’t seen and understood.

Rule 11. Signing of Pleadings, Motions, and Other Filings; Representations to Court; Sanctions

b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other filing, . . . an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,–
. . .

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; . . .

This is a particularly ironic way for him to try to steal the results of others – the warming in the 20th century is one of the first things that do *not* follow from his methodology. He has to combine it with other people’s data to “restore” the warming. At any rate, the arrogance of this individual is stunning.

This sounds to me like the output of some lawyer who has seen the HS graph and is trying to describe it to the court.

That’s my view and I think it’s a useful reminder of how confused ordinary people (or even lawyers) are about global or northern hemispheric temperature. Mind you, Drs Essex and McKitrick might say they’re right to be confused. It’s like Sarah Palin thinking hide the decline was about ‘real’ temperature readings from thermometers (if she ever did – it’s no doubt like Al Gore inventing the Internet by now). People don’t get this stuff. Let’s hope the judge this time round at least gets that Mann has ridiculously misrepresented himself. I look forward to the next CA installment.

Thanks Jeff. I’m not surprised to agree with Nick, because what he wrote was I thought sensible! But I finished with ‘Mann has ridiculously misrepresented himself’, agreeing with you and everyone else that it’s the plaintiff’s responsibility in the end.

As a lawyer, I have been underwhelmed by the quality of the work submitted by Mann’s lawyers. Particularly uninspired was the statement that the Federal Rules of Evidence applied, when DC has not adopted the federal rules. I would also observe that Williams’firm only has 4 lawyers, which is not enough to handle this litigation. Additionally, it appears that the practices of the other 3 lawyers are focused on insurance, which does not provide a good background for the handling of this type of litigation.

JD
Steve: I thought that Cozen O’Connor was Mann’s legal firm. It seems large enough.

Lawyers at large firms like Cozen only have a limited flexibility with respect to not attaining the required amount of billable hours mandated by their firm. Unless Mann’s expenses are being underwritten by someone else, he almost certainly could not afford Cozen’s lawyers in this case because this case requires an enormous amount of work. (And, generally large firms don’t work on the basis of contingency fee contracts) Thus, I believe that Mr. Fontaine is pitching in some, but can not be relied upon to do a good portion of the fundamental work required by this case. My educated guess regarding Williams’ potential under staffing problems is supported by the use of sole practitioner Bernard Grimm whose main area of practice is criminal defense litigation and whose website states that he offers more competitive rates than big firms. Just looking at the big picture, coupled with the many mistakes, my guess is that Mann’s lawyers are understaffed.

Also, it is ironic that Mann’s lawyer Fontaine does environmental defense work and defends alleged polluters: His bio states: “He defends and prosecutes environmental claims in state and federal courts and administrative agencies, including before the Pennsylvania Environmental Hearing Board and the New Jersey Office of Administrative Law.”

I am surprised that so many here seem confused over why Mann and his lawyers would misrepresent the facts. They did it because it works. It has worked for them in the past and it actually worked for them in this case. It works because guys like Nick Stokes engage in a kind of doublethink. The world of facts is divided into facts which support the cause and facts which don’t. The first group is accepted as true, no matter how improbable, until proven false to a mathematical certainty. At the DC trial court level, Mann’s lawyers could be fairly confident that their Judge would have the “Racehorse Nick” attitude toward “facts” and “truth”.

Why has Mann claimed for years that M&M demanded data in EXCELL format? I have long suspected that guys like Nick Stokes actually don’t believe this EXCELL incident happened in the ordinary sense but the would never allow that to alter their professed belief in Mann’s credibility.

Pleadings consist of statements of fact and arguments of law. Statements of fact are made under oath, e.g. “Upon information and belief.” If you knowingly submit false statements of material fact to a court, you are well on your way to a memorable spanking, e.g. being reprimanded, referred to the bar for discipline, or having your case dismissed with prejudice.

If the court gets upset by this, the lawyer may be able to defend him/herself by saying the client misinformed him. But I don’t see how the client can escape blame.

I doubt that Mann “informed” the lawyer that his work was about station data. My take on these pleadings is that there is quite a bit of freelancing by Mann’s lawyers (combined with poor to non-existent vetting by Mann). One of Mann’s lawyers, Peter Fontaine, has attended AGU conferences to preach to climate scientists and seems to have an interest in the matter that is personal as much as professional.

I think you may not be recognizing the mental process going on here. I know this is going to sound a little crazy but Mann probably as subject to the doublethink thing as his lawyers and the judges. If you asked Mann directly whether his “work was about station data” he would immediately say no. But if you ask him whether he was “one of the first” to “document” the increased temps due to climate change he would say its true because his work shows that temps are higher now than they have been for the last thousand or ten thousand years.

You are reading the brief with the assumption that the most reasonable interpretation of the words you see was the intended one. He would read just to check whether there is any possible interpretation which, although misleading, is not absolutely, provably, false in the short term. If that is your mind set, you claim to have won the Nobel Prize if you performed work used by an organization that won it.

Steve: keep in mind the actual wording of Mann’s claim that he was “one of the first to document the steady rise in surface temperatures during the 20th Century and the steep increase in measured temperatures since the 1950s”. I do not doubt for a minute that Mann would try to rationalize the false statement in some contorted way. But equally opposing lawyers would easily show that his claim was false and easily score points.

I agree that in litigation, depending on the circumstances, it may be a bad idea to make false or misleading statements for the very reason that you mention (please note,however, that in many cases, including this one, it works).

But we were trying to determine the source of the misleading that Mann performed work actually performed by Hansen and Jones (or organizations they led). You claimed that Mann would not have made this absurd statement to his lawyers. I would not be so sure. This is not because Mann himself thinks he did something he knows very well he did not actually do. It’s because Mann is asserting something which he believes will help the cause if it is believed by others to be true. Such statements are not to be examined too closely and are not to be judged by the same standards which are applied to other statements when they are examined.

I do not think it is at all surprising that Mann has not been ‘in the loop’ on the technical accuracy of his lawyers’ submissions to the court. It is after all a SLAPP. If Mann were required to actually invest time and money to proceed with the case (remember, Mann’s case is almost certainly either pro bono or paid for by someone else) then the whole process would fail to accomplish its main goals: punish your critics, and demonstrate to others they they potentially face the same punishment if they are not very careful about what they say and/or write….. at insignificant personal cost to the plaintiff.

I think that perhaps Mann is being given too little credit here for putting findings in less than clear language and depictions that can be advantageously used later, if needed, to provide deniability. Notice in the graph above that, while the series in depicting the instrumental and proxy responses for the Northern hemisphere are presented with different colors, the instrumental and proxy responses appearing in the same graph are given the appearance of equal billing and particularly so to the layperson attempting to understand what the graphs represent. If one were to accept the notion that the proxy and thermometer responses are equally accurate and believable I would think it possible that one could subsequently make the claim that, at the very least, the proxy based temperature reconstruction of Mann et al was one of the first to confirm the entire historical instrumental record and, at best, that the proxies suffer not or less from the non climate factors that can affect station data.

All this sounds like nonsense to those of us who realize that by selection of proxies that agree more or less with the instrumental record one could select proxy responses that were mainly due to red and white noise that provide a noisy ending with an upward trend coinciding with the instrumental record. On the other hand, Mann has the explicit support of those colleagues who would defend his methods and perhaps implicitly from those who would not defend but are silent on the matter.

I would doubt very much from his on-top-of-matters in wording responses in Climategate emails that Mann was not aware of what his lawyers put into the depositions. I would think he is ready to defend/handle those – claims and with perhaps something slicker than what I thought up.

As in the previous thread, where I contested Nick’s assertions which began on Climate Etc with “The ACLU has it exactly wrong. The case is not about a scientific controversy. It is about allegations of malfeasance…”, my perception is that Mann is aiming to present scientific certainty wrt his work.

Quite typically his supporters, when debating the validity of Mann’s research, present rejoinders such as “then you deny the physics”, in attempts to make it about physics or GHG theory – or even about measured 20th century temperature increase.

It seems that Mann is consciously attempting to bring his research closer to that which is not so debatable as his own art is.
He wants to establish a court atmosphere that is accepting at face value, by making it more about run-of-the-mill climate science and less about his own stats peculiarities, and the amputated, upside-down, agency-disparaged and disallowed-by-his-own-processes proxy records in his own work.

Hey, you all, you’re not getting it. What Mann (and/or Mann via his lawyers) is doing is deliberately submitting false statements in order to poke Steyn in the face so that Steyn will poke him back even harder in the face so that Mann can feel he is being “duly punished” for his sins, thereby ameliorating his conscience. And you can see how this is all playing out as planned, as Steyn is having great fun being Steyn and sticking it to Mann. (The analysis herein was ripped straight from “Advanced Pathological Human Behavior for Dummies”–it’s important here at CA to give the appropriate citation.)

Differently, Steyn is using the forceful legal defense of publishing the same words, and words that are much more defamatory, many many more times in the interim.

‘So Dr Mann claims he was injured by my insults. Well, I have insulted him many more times, and many times worse than that, in the time since then. How has he been harmed since then? If his stature is the same now as it was then, then there has been no harm to his stature. No harm, no tort.’

Much ado about nothing, lawyers by definition advocate for their client. Steyn’s advocacy for himself (because he’s too dumb to get a lawyer) is much more appalling, but you won’t ever go there. No worries, that’s what trials are for. Anyway, enjoy your hobbies.

“Along with other researchers, he was one of the first to document the steady rise in surface temperatures during the 20th Century and the steep increase in measured temperatures since the 1950s. As a result of this research, Dr. Mann and his colleagues were awarded the Nobel Peace Prize”

I count 7 errors here.

1. He wasn’t ‘one of the first’. Probably thousands had already worked on it.
2. He didn’t ‘document the surface temperatures during the 20th century’, he worked on proxies.
3. The temperatures didn’t ‘steadily rise’, they trended down ~1900-1910, then trended up til ~1945, then trended down til ~1975, then trended up til ~1998.
4. The temperature didn’t ‘steeply increase…since the 1950s’. They trended down from ~1950s-1970s.
5. The temperatures didn’t ‘steepen’ any faster from the 1970s-1990s than previous warming trends of the 20th century.
6. They were not ‘awarded the Nobel Peace Prize’. An organisation was, to which they contributed.
7. And neither was the Nobel Peace Prize awarded as a result of ‘this research’. It was awarded to a much broader collective of research material on climate that went into the IPCC report.
(8. Not really an error, but one wanders what the ‘Peace Prize’ has to do with a climate report that arguably hasn’t achieved anything of material or meaningful value as yet.)

Thingdo – “7. And neither was the Nobel Peace Prize awarded as a result of ‘this research’. It was awarded to a much broader collective of research material on climate that went into the IPCC report.
(8. Not really an error, but one wanders what the ‘Peace Prize’ has to do with a climate report that arguably hasn’t achieved anything of material or meaningful value as yet.)”

As your item #7 & #8 points out – the peace prize is an award for political activism, not a nobel prize for science. Does his audience recognize the difference and if they did, would it matter to them.

He can claim that when the lawyers asked him to review the submission he was busy doing science so he assigned the task to an assistant/intern/student who prepared the response but had some difficulty because the lawyers had specifically asked for a reply in the form of an EXCEL spreadsheet. This probably explains the problem.

When… and unless until, defendants’ lawyers make the falsity of this claim entirely clear to the court, which may not be all that easy, I suspect the judge will not pay it a lot of attention unless it is felt necessary to add it’s weight to the other misrepresentations to achieve the court’s desired result of throwing this mess out.

Phil
Steve: I agree with this point. However, it ties into a fairly central aspect of Mann’s narrative that has thus far been overlooked. I separated this segment as I had too many dangling lines of exposition and wanted to finish one.

Courts in the US can be forgiving (or not) of sloppy language as given in the example of 3 different rulings about the wording in the Affordable Care Act where a three judge DC panel reversed a lower court ruling and ruled 2 to 1 that the wording clearly states that only subsidies can be available through exchanges established by the State while the Court of Appeals for the Fourth Circuit in Virginia claimed the law was ambiguous and claimed legality under one interpretation.

A determined judge might rule that that part of the Mann disposition was ambiguous and then provide a “reasonable” interpretation. Nothing to see here so let us move on.

Normally the pleadings are drafted by the lawyers and reviewed with the client. This is prudent at a number of levels.

Obviously, no sensible lawyer wants to mislead the Court with false statements in the pleadings but that is not the key reason to get the client’s input.

Generally, in civil litigation the pleadings limit but define the scope of discovery and, if the matter goes to trial, cross examination.

For example, given Mann’s propensity to stonewall discovery – cf. Mann v. Ball – a prudent lawyer would try to limit the grounds for discovery by framing the pleadings narrowly.

Making a statement like,

“Along with other researchers, he was one of the first to document the steady rise in surface temperatures during the 20th Century and the steep increase in measured temperatures since the 1950s.”

opens Mann to document discovery and oral discovery on every element of that statement. For example, what documents, such as emails does Mann have going to “document the steady rise in surface temperatures during the 20th Century”.

Had Mann’s lawyers not made this claim the discovery demand for such documents could be denied on the basis that it was not relevant to any issue raised in the pleadings. But this sort of broad claim means that an awful lot of Mann’s scientific work, working papers, emails, phone records and informal contacts are all discoverable.

Drafting narrow pleadings is an art and one which, apparently, Mann’s lawyers have chosen not to practice.

Steve: if confronted with such a request to “document the steady rise in surface temperatures during the 20th Century”, Mann could effortlessly produce IPCC reports showing the temperature increase. What Mann would be unable to produce are documents that actually showed that he was “one of the first” to document this increase. But, in his pleadings, he referred to MBH98 and MBH99 as papers that were supposedly relevant to this claim. So in all likelihood, he would simply produce MBH98 and MBH99. And in discovery, he would be quick to segue any question into comfortable lecture material.

Something I have done before (in a patent infringement case) is to use the affirmative defenses or counterclaim section of an answer to set forth a series of short factual statements which are pertinent to a defense. Each paragraph must be admitted or denied (or to be honest can be ducked by saying you have no information sufficient to either admit or deny).

Still, this can be a form of early discovery, and functions like a set of admission requests.

Opinion and truth are both affirmative defenses to the charge of defamation.

In support of “tortured the data” as an opinion (or the truth) in the affirmative defense section, one could draft a set of statements about the generation of the R2 statistic, but then not including that statistic in the paper (for example).

I don’t remember if either answer used this technique – but it sure would be fun to draft a set of admissions to use in an answer (in case anybody else is sued for defamation by Mann in the future).

Think how useful it would be to get Mann to admit some pertinent facts (like the existence of the censored folder or the R2 statistic or the divergence in proxy data which lead to the grafting of the temperature data onto the graph . . .).

There are probably dozens or hundreds of short factual statements it would have been fun to try to get Mann to admit or deny – all of which are pertinent to opinion or truth of the language giving rise to the defamation claim.

Every admission, denial or even pleading lack of information can be inquired about in a deposition.

Imagine if Mann said he didn’t have information sufficient to admit or deny a paragraph about the R2 statistic.

You could follow this up in a deposition and ask dozens of questions about the assertion of lack of information and impeach with other documents, emails or statements.

You can also ask for money to the extent you can prove someone denied a paragraph that you latter prove they should have admitted – so you might even recoup some time spent in deposition or research to prove an improper denial or false claim of lack of information.

I would be interested to hear if any other attorneys have used the answer to draft a set of admission requests.

Mann could effortlessly produce IPCC reports showing the temperature increase. What Mann would be unable to produce are documents that actually showed that he was “one of the first” to document this increase.

I’m not a lawyer but have provided technical assistance to them in litigation.From my experience with discovery, the words “any and all” would be included in the demand. So any emails, documents etc. that he had referring to the topic would have to be produced. The side producing the documents is not able to just produce a convenient summary, or at least this is what I have understood.